Discuss the scope of Muslim law regarding the maintenance of a divorced woman against her husband. Discuss the changes made in this respect in famous Shah Bano case decided by Supreme Court.

Question:  Discuss the scope of Muslim law regarding the maintenance of a divorced woman against her husband. Discuss the changes made in this respect in famous Shah Bano case decided by Supreme Court. [BJS 2006]

Find the question and answer of Muslim Law only on Legal Bites. [Discuss the scope of Muslim law regarding the maintenance of a divorced woman against her husband. Discuss the changes made in this respect in famous Shah Bano case decided by Supreme Court.]

Answer

Muslim wives' claim of maintenance is divided into two different branches of law. One under Muslim Personal Law and another under the general law of maintenance as is reflected in the Code of Criminal Procedure, 1973, which is a secular remedy.

According to the Muslim Personal Law, the husband's duty to maintain commences when the wife attains puberty and not before, provided always that she is obedient and allows him free access at all lawful times. If a wife deserts her husband, she loses her right to maintenance. In addition to the legal obligation to maintain, stipulations in the marriage contract may render the husband liable to make a special allowance to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc.

If the husband refuses to pay maintenance, the wife is entitled to sue him. Her right may be based on the substantive law, or she may sue under the provisions of the Code of Criminal procedure, which provides for a general law of maintenance under Section 125 wherein the term "wife" is widely defined and explained so as to cover the claim of 'legally wedded wife' as well as of 'divorced wife'. So, in short Muslim wife's claim of maintenance arises in the following circumstances:

1. Out of the status of Husband & Wife (During the subsistence of marriage & out of the legal obligation imposed on the husband.

2. Out of pre-nuptial agreement and

3. Out of divorce. (After the dissolution of marriage)

Scope of Maintenance claim out of divorce

Under other personal laws, a divorced wife is entitled to maintenance until her remarriage or indulgence in post-divorce adultery. But the Muslim law does not provide for any maintenance to a divorced wife after the period of Iddat.

With respect to the maintenance of a divorced wife under Muslim Law, the right of maintenance commences on divorce or when she comes to know of the divorce and ceases on the death of her husband, as her right of inheritance supervenes. In other cases where the husband is alive and has divorced the wife, she can claim maintenance only during the Iddat period and not beyond that. The widow is therefore not entitled to maintenance during the Iddat period commencing after the Husband's death.

This rule has been a bone of contention and on this count, there has been a debate in society as to the uniformity of personal laws.

So with respect to the claim of Muslim women's right to maintenance, the law is divided and reflected in the following legislations:

1) Muslim Personal Law (Shariat Application) Act, 1937

2) Code of Criminal Procedure, 1973

3) Muslim Women (Protection of Rights on Divorce) Act, 1986

The Supreme Court stated in Mohd. Ahmad Khan v. Shah Bano and Others, AIR 1985 SC 945, that the religious preferences of a spouse or spouses have no place in the implementation of Section 125 of the Criminal Procedure Code, which is a measure of social justice founded on an individual's obligation to the society to prevent vagrancy and destitution. If there is any conflict between Personal Law and Section 125 Cr.P.C. then it is clear from the language of the Section that it overrules Personal Law.

According to this ruling, a Muslim woman who is unable to support herself is entitled to maintenance from her husband until the point at which she marries again.

The Supreme Court, by setting a landmark precedent for the Courts within the territory of India held that Section 125 of Cr. P.C., 1973 applies to all, irrespective of the religion practiced by the person and section 125 overrides the personal law, if there is any conflict between the two. To this extent, the judicial pronouncement is instrumental. The court also held that

"It would be incorrect & unjust to extend the rule of maintenance under Muslim Law to the cases in which the divorced wife is unable to maintain herself, so if the divorced wife is able to maintain herself, the husband's liability ceases with the expiration of the period of Iddat, but if she is unable to maintain herself after the period of Iddat, she is entitled to have recourse to Section 125 of Cr. P.C."

So with the help of this judgment, Supreme Court has set a new law applicable in the case of a Muslim divorced lady that even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of Cr. P. C. after the expiry of the period of Iddat also, as long as she does not remarry.

The case created considerable debate and controversy about the extent of having different civil codes for different religions, especially for Muslims in India. This case caused the government, with its absolute majority, to pass the Muslim Woman (Protection of Rights on Divorce) Act, 1986 which weakened the judgment of the Supreme Court and, in reality, denied even entirely destitute Muslim divorcees the right to maintenance from their former husbands.

Following is a summary of this Act's provisions pertaining to a divorced Muslim woman's maintenance:

(1) The divorced woman has a right to reasonable and fair support from her ex-husband during the Iddat period [Section 3(1)(a)].

(2) Where she is responsible for raising the children she had before or after the divorce, her ex-husband must make and pay maintenance for a period of two years following the respective dates of the children's births [Section 3(1)(b)].

(3) Divorced women who have not remarried and who are unable to support themselves after the iddat period are entitled to maintenance from those relatives who would inherit their inheritance in the event of their passing. [Section 4(1)]

(4) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned above or such relatives or any one of them have not enough means to pay the maintenance the liability to maintain her is cast upon the Waqf Board of the State in which she resides [Section 4(2)].

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